In this essay, Professors Dana and Tuerkheimer conceptualize Flint as an archetypical case of underenforcement—that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Viewed as such, the inadequacy of environmental regulation can be understood as a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations.
Professor Somin’s response to my article on post-Kelo reform, The Law and Expressive Meaning of Condemning the Poor after Kelo, makes several intriguing points. And it also provides a more current take on takings reforms in the states, which are certainly still in flux.
Professor Somin, however, overstates the number of states that have flatly banned blight and economic development condemnations, and hence underplays the central importance of the distinction between “blighted” and non-blighted property in the post-Kelo reform legislation, initiatives and court cases. The Nevada initiative is not yet part of the Nevada Constitution; a second round of voting will be required before it is ratified (although perhaps the easy passage in the first round of voting suggests it will pass again). The Kansas statute still allows blight condemnations for serious housing code violations, which may not be that hard to find in the stock of urban rental housing in poor neighborhoods. The statute, in practice, thus may not make it much more difficult to condemn these areas. And the South Dakota statute is ambiguous on this issue. In any case, South Dakota has hardly been, or will hardly ever be, a major site of urban redevelopment initiatives. The fact remains, moreover, that post-Kelo at least twenty five states now set different standards for blight and non-blight/economic condemnations, even by Professor Somin’s count.